Rule doesn't apply when police act in good faith reliance on defective warrant unless (1) underlying affidavit was so lacking in probable cause that it couldn't be reasonably relied on, (2) warrant was defective on its face, (3) affiant lied on affidavit, or (4) magistrate "wholly abandoned his judicial role."

Evidence barred by exclusionary rule may be used for impeachment purposes.

Harmless Error Test

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless government can show, beyond a reasonable doubt, that the error was harmless.

Denial of right to counsel at trial is NEVER harmless.

Enforcing the Exclusionary Rule

Defendant is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge outside of the hearing of the jury. The government bears the burden of establishing admissibility by a preponderance of the evidence. Defendant has a right to testify at the suppression hearing without his testimony being admitted against him at trial on the issue of guilt.

When does seizure of a person occur?

Seizure occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the government.

A valid warrant to search for contraband allows police to detain occupants of the premises during search.

Seizure of a person by subpoena for a grand jury appearance is not within the 4th amendment protection.

Arresting a Person

Arrest must be based on probable cause. A warrant is generally not required before arresting someone in a public place. Must have warrant, though, to effect a non-emergency arrest of a person in his home.

Stop and Frisk

If police have reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may detain a person for investigative purposes. If they also have reasonable suspicion that the detainee is armed and dangerous, they may frisk for weapons. Detention must be no longer than necessary to conduct a limited investigation. Police may ask detainee for ID, and if detainee refuses, the police may arrest him for that.

Automobile Stops

Generally, police may not stop a car without at least reasonable suspicion that a law has been broken. Police may order car's occupants out after lawfully stopping the vehicle in the interest of officer safety. If he reasonably believes them to be armed, he may search for weapons.

Roadblocks

If special law enforcement needs are involved, the Supreme Court allows police to set up roadblocks to stop cars without individualized suspicion (i.e. sobriety checkpoint). To be valid, roadblock must: (1) stop cars on basis of some neutral, articulable standard (e.g, every car), and (2) be designed to serve purposes closely related to a particular problem related to cars and their mobility.

Evidentiary Search and Seizure Analysis

(1) Does the defendant have a 4th amendment right?
(2) Did the government have a valid warrant?
(3) If police didn't have a valid warrant, did they make a valid warrantless search and seizure?

Does the defendant have a 4th amendment right?

(1) Was there a seizure by the government (state action - not private actors, unless state agents)?
(2) Did the defendant have a reasonable expectation of privacy?

Did the government have a valid warrant?

(1) Issued by a neutral and detached magistrate?
(2) On a showing of probable cause?
(3) Reasonably precise as to the place to be searched and items to be seized?

Determination is made on the totality of the circumstances, but defendant has a reasonable expectation of privacy any time: (1) he owned or had right of possession to the place searched, (2) the place searched was his home (whether he had ownership/right of possession or not), or (3) he was an overnight guest of the owner of the place searched.

No REP in objects held out to the public.

A search warrant on the basis of an affidavit will be held invalid if...?

Defendant establishes all three of the following:
(1) false statement was included by affiant (police),
(2) affiant intentionally or recklessly included a false statement, and
(3) false statement was material to finding of probable cause.

Warrant Provisions (Other Than Probable Cause)

(1) Must describe with reasonable precision the place to be searched and items to be seized (including those in the affidavit is not sufficient).
(2) May be obtained to search premises belonging to non-suspects as long as there is probable cause to believe that evidence will be found there.
(3) Only the police may execute a warrant, and it must be executed without reasonable delay. Must knock and announce their purpose, and wait a reasonable time for admittance (unless doing so would frustrate their purposes - would be dangerous, futile, or would inhibit the investigation).
(4) May seize any contraband or fruits/instrumentalities of crime discovered, even if not in warrant.

Search Incident to Lawful Arrest

Incident to a LAWFUL arrest, may search arrestee and areas into which he might reach to obtain weapons or destroy evidence (including, if applicable, the entire passenger compartment of car). May also make protective sweep of the area if accomplices believed to be present. Search must be contemporaneous with time and place of arrest.

If arrest = unlawful, search incident = unlawful.

At the police station, the police may make an inventory search of arrestee's belongings, and may make an inventory search of an impounded vehicle.

"Automobile" Exception

If the police have probable cause to believe that fruits, instrumentalities, or evidence from a crime are contained in a vehicle, they may search the whole vehicle and any containers that might reasonably contain the item for which they had probable cause to search. If warrantless search is valid, they may tow to the station and search later. If there is probable cause to believe that the car, itself, is contraband, may seize it from a public place without a warrant. May search packages belonging to passengers as well.

If the police ONLY have probable cause to search a container in a vehicle, may ONLY search the container - not the rest of the vehicle.

Plain View

The police may make a warrantless seizure when they are:
(1) legitimately on the premises;
(2) discover evidence, fruits or instrumentalities of a crime, or contraband;
(3) see such evidence in plain view; and
(4) it is immediately apparent that the item is evidence, fruits or instrumentalities, or contraband.

Consent to Search

A warrantless search is valid if the police have voluntary and intelligent consent. Knowledge of the right to withhold consent is not a prerequisite to establish consent. The scope of search is limited by the scope of consent, but extends to all areas which a reasonable person in the circumstances would believe it extends to. Any person with apparent equal right to use or occupy the premises may consent to the search, and any evidence found may be used against other owners/occupants.

Scope of Frisk (in Stop and Frisk Cases)

Generally limited to a pat down of outer clothing unless the officer has specific information that a weapon is hidden in a particular area of the suspect's clothing. May also order occupants out of a stopped vehicle and frisk them. During the pat down, the officer may reach into suspect's clothing and seize any item the officer reasonably believes (based on its "plain feel") is a weapon or contraband, and such items are admissible as evidence.

Hot Pursuit

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling.

"Emergency Circumstances" That May Justify Warrantless Searches and Seizures

(1) Evidence likely to disappear before a warrant can be obtained.
(2) Contaminated food or drugs.
(3) Children in trouble.
(4) Burning fires.

Searches in Foreign Countries

The 4th Amendment doesn't apply to searches and seizures by U.S. Officials in foreign countries involving an alien, at least where alien doesn't have a substantial connection to the U.S. For example, the 4th Amendment was held not to bar use of evidence obtained in warrantless search of an alien's home in Mexico.

Searches at Border or Its Equivalent

No warrant necessary for border searches. Neither citizens nor non-citizens have any 4th Amendment rights at the border. Roving patrols inside U.S. border may stop any vehicle for questioning of occupants if officer reasonably suspects car contains illegal aliens. Border officials may stop a car at a fixed checkpoint inside the border for questioning of occupants and may disassemble the car, even without reasonable suspicion.

Opening International Mail

Permissible border searches include opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.

Immigration Enforcement Actions

Immigration Services Division may do a "factory survey" of the workforce in a factory to determine citizenship of each employee. Moreover, even illegally obtained evidence may be used in a civil deportation hearing.

Wiretapping and Eavesdropping

A valid warrant authorizing a wiretap may be issued if: (1) probable cause shown, (2) persons sought to be overheard named, (3) warrant describes with particularity conversations that can be overheard, (4) limited to short period of time, (5) terminated when the desired information is obtained, and (6) return made to court, showing conversations intercepted.

A speaker assumes the risk that the person he's speaking to is a wired informant or is taping the conversation. No 4th Amendment right unless they actually make an attempt to keep the conversation private.

What if the method used to obtain evidence "shocks the conscience?"

Evidence obtained in a manner offending a "sense of justice" is inadmissible under the Due Process Clause. Reasonableness of searches within a person's body is determined by balancing society's need against the magnitude of the intrusion. Taking a blood sample usually is upheld, but surgery (e.g., to remove a bullet) requires a great need.

Voluntariness of Confession

For a self-incriminating statement to be admissible under 14th Amendment Due Process, it must be voluntary as determined by the totality of the circumstances. The statement will be involuntary only if there is some official compulsion. If an involuntary confession is entered into evidence, the harmless error test applies.

6th Amendment Right to Counsel

Includes all critical stages of a prosecution after formal charges have been filed. Prohibits police from deliberately eliciting an incriminating statement from the defendant outside the presence of counsel after defendant has been charges unless defendant waives his right to counsel.

The 6th Amendment right is offense-specific. Even though the right may have attached regarding one charge, the defendant may be questioned regarding an unrelated, uncharged offense without violating the 6th Amendment (thought it might violate Miranda).

When are Miranda warnings required?

They are required prior to interrogation by police (if in custody and accused of a crime). They are only necessary if the defendant knows he's being interrogated by a government agent.

How do you determine whether someone's in custody?

Depends on whether their freedom of action is denied in a significant way based on objective circumstances.

What constitutes interrogation?

Words or conduct by police that they should know would likely elicit a response from the defendant. Routine booking questions are NOT interrogation.

Can a suspect waive his Miranda rights?

Yes, but it must be a knowing, voluntary, and intelligent waiver.

Do Miranda requirements apply to a witness testifying at the Grand Jury?

No, not even if compelled by subpoena to be there.

What kind of statements does Miranda apply to?

Inculpatory AND exculpatory statements.

How would a suspect exercise his right to terminate an interrogation?

The accused can invoke his right to remain silent. The police must scrupulously honor this request. They may not badger him, though the Supreme Court has allowed later questioning to occur on an unrelated crime.

The accused can invoke his right to counsel. Must do so unambiguously, but once he does, the questioning must cease until an attorney is provided. The accused can later waive this right by reinitiating the questioning (MUST be reinitiated by the accused, not the police).

What is the effect of the Miranda violation?

The evidence obtained in violation of Miranda is inadmissible at trial (exclusionary rule). The statements may, however, be used to impeach defendant's trail testimony, but not as evidence of guilt.

What if the police obtain a confession, give the Miranda warnings, and then obtain a subsequent confession?

It's inadmissible if the "question first, warn later" approach was intentional. If original unwarned questioning seemed unplanned and the failure to warn was inadvertent, it is unclear whether the non-testimonial fruits of unwarned confession must be suppressed - probably not.

Public Safety Miranda Exception

The Supreme Court has allowed interrogation without Miranda warnings where reasonably prompted by concern for public safety (e.g., to locate hidden gun that could have caused injury to an innocent person).

Pre-Trial Identification

Suspect has a 6th Amendment right to counsel at any post-charge line-up or show-up. There is no right to an attorney at photo identifications or when the police take physical evidence (fingerprints, etc).

A suspect may attack and ID when it is unnecessarily suggestive and there is a substantial likelihood of misidentification (Due Process).

Defendant may not refuse to participate in a line-up on 5th Amendment self-incrimination grounds.

What is the remedy for an Unconstitutional identification?

Exclusion of the in-court identification - but this is rarely granted.

In-Court Identification

The witness may make an in-court identification despite the unconstitutional pre-trial ID if the in-court ID has an independent source. The most common is an opportunity to observe at the time of the crime.

Preliminary Hearing to Determine Probable Cause to Detain

If probable cause has been determined (warrant or grand jury indictment), no preliminary hearing is necessary. If not, and there are significant constraints on arrestee's liberty (bail or jail, but not ROR), a preliminary hearing on probable cause must be held within a reasonable time (typically 48 hours). This is an informal, non-adversarial hearing. There is no real remedy for denial of hearing, but evidence discovered as a result of the unlawful detention can be excluded under the exclusionary rule.

Bail

Most state constitutions create a right to be released on bail unless the charge is capital. Bail can be set no higher than necessary to ensure defendant's appearance at trial. Refusal to grant bail or setting of excessive bail can be appealed immediately, however the Supreme Court has upheld portions of the Bail Reform Act allowing arrestees to be held without bail if they pose a danger or would fail to appear at trial. Try a due process argument.

Grand Jury Proceedings

Defendant has no right to notice that Grand Jury is considering an indictment, to be present and confront witnesses, or to introduce evidence. Witnesses (even if potential defendants) have no right to counsel or Miranda warnings.

Evidence that would be inadmissible at trial may be presented to the Grand Jury, and the defendant cannot have the indictment quashed on those grounds. There is no right to challenge a subpoena to be a witness at a Grand Jury proceeding for ANY REASON.

Speedy Trial

Violation is determined by the totality of the circumstances. The factors: length of delay, reason for delay, whether the defendant asserted his right, and prejudice to the defendant. The remedy is dismissal with prejudice.

The right doesn't attach until the defendant has been arrested or charged. If he's charged and incarcerated in another jurisdiction, reasonable efforts must be made to obtain the defendant's presence.

It is a speedy trial violation to permit the prosecution to indefinitely suspend charges.

Prosecutorial Duty to Disclose Exculpatory Information and Notice of Defenses

Failure to disclose such evidence (whether willful or inadvertent) violates due process and is grounds for reversal if defendant can prove:
(1) the evidence is favorable to him because it either impeaches or exculpatory, and
(2) prejudice has resulted (a reasonable probability that the case would have turned out differently).

Alibi

If the defendant is going to use an alibi defense, he must give the prosecution a list of the witnesses, and prosecution must give the defendant a list of their rebuttal witnesses

May the prosecutor comment on Defendant's failure to produce a witness supporting the alibi?

No - and he may not comment on the failure to present an alibi itself.

Competency to Stand Trial

Defendant is incompetent to stand trial if he either (1) lacks a rational as well as factual understanding of the charges and proceedings, or (2) lacks sufficient present ability to consult with his attorney with a reasonable degree of understanding.

The state may place the burden on the defendant by a preponderance of the evidence standard, but requiring clear and convincing evidence is unconstitutional.

Pre-Trial Publicity

Excessive pre-trial publicity that is prejudicial to the defendant may require a change of venue or retrial.

Right to a Fair Trial

The 6th and 14th Amendments guarantee a right to a public trial. Preliminary probable cause hearings are open to the public. Pre-trial suppression hearings are open, but may be closed for good cause. The press and public have a 1st Amendment right to attend the trial itself even when defendant and prosecution agree to close it. The state may constitutionally allow it to be televised, even over defendant's objection.

There is a Due Process violation if the judge is shown to have actual malice against the defendant or financial interest in the guilty verdict.

There is also a due process violation if: (1) it is unlikely that the jury gave evidence reasonable consideration, (2) the state compels defendant to stand trial in prison clothes or visibly shackled (absent security concerns), or (3) the jury is exposed to influence favorable to the prosecution.

Due Process also prohibits bad faith destruction of evidence.

Right to Jury Trial

Only for serious offenses. An offense is serious if imprisonment of more than 6 months is authorized. Otherwise, no right to a jury trial. There is no right to a jury trial in juvenile delinquency proceedings or civil contempt proceedings.

Judge may impose up to 5 years probation without the right to a jury trial as long as revocation wouldn't result in imprisonment of more than 6 months.

Number and Unanimity of Jurors

There is no constitutional requirement for 12 jurors, but there must be at least 6 to satisfy the right to a jury trial. The Supreme Court has upheld convictions that were less than unanimous, but probably wouldn't approve something like an 8-4 vote for conviction. 6-person juries must be unanimous.

Right to Venire Selected from Representative Cross-Section of the Community

The defendant only need to show underrepresentation of a distinct and numerically significant group in the venire to show his jury trial right violated. No right to proportional representation on all groups on his personal jury, though.

Race-Based or Gender-Based Juror Challenges

Equal Protection prohibits these challenges. An EP attack requires three steps:
(1) Defendant must show facts or circumstances that raise an inference of exclusion based on race or gender.
(2) Prosecution must give a race/gender neutral explanation for strike (even an unreasonable explanation is sufficient).
(3) Judge determines whether the explanation was the genuine reason or a pretext, then will uphold or disallow, respectively.

Right to an Impartial Jury

The defendant is entitled to question the prospective jurors on voir dire specifically about racial prejudice whenever race is bound up in the case or the defendant is accused of an interracial capital case.

In capital cases, the state may not automatically exclude for cause all those expressing a doubt or scruple as to the death penalty. It must be determined whether the juror's views would prevent or substantially impair performance of duties in accordance with instructions and oath.

If the death penalty is imposed by a jury from which a juror was improperly excluded, automatic reversal.

In a capital case, the defendant can ask a juror if they would automatically give the death penalty if found guilty. If they would, the juror must be excluded for cause.

If the trial court refuses to exclude a juror for cause whom the court should have excluded, and defendant uses a peremptory challenge to exclude, there is no constitutional violation.

Inconsistent Verdicts

Verdicts where a defendant is found guilty, but a co-defendant is not on the same evidence are not reviewable.

Sentence Enhancement

If substantive law provides for a sentencing enhancement, proof of facts for the enhancement must be submitted to the jury and proved beyond a reasonable doubt. Defendant's right to jury trial is violated if the judge makes the determination.

Same rule applies to sentencing enhancements after guilty pleas. However, judges may determine the presence of sentencing factors to determine whether the defendant should receive the minimum or maximum penalty under the sentencing scheme.

Defendant has right to defend himself at trial if, in the judgment of the judge, his waiver is knowing and intelligent; he need not be found capable of representing himself effectively. Note that a defendant does not have a right to self-representation upon appeal.

Indigence and Recoupment of Cost

The state generally provides counsel in close cases of indigence, but then may seek reimbursement from those convicted defendants who later become able to pay.

Effective Assistance of Counsel

The 6th Amendment right to counsel includes a right to EFFECTIVE ASSISTANCE of counsel. This right extends to the first appeal. Effective assistance is generally presumed.

What must be shown in an ineffective assistance of counsel claim?

Claimant must show:
(1) deficient performance by counsel, and
(2) but for this deficiency, the result of the proceeding would have been different.

The defendant must point out specific deficiencies, and can't base the claim on inexperience, lack of preparation time, gravity of charges, complexity of defenses, or accessibility of witnesses to counsel. Circumstances NOT constituting IAC include trial tactics and failure to raise a constitutional defense that is later invalidated.

Conflicts of Interest

Joint representation is not per se invalid. However, if the attorney advises the court of the resulting conflict of interest at or before trial, and court refuses to appoint separate attorneys, the defendant is entitled to automatic reversal.

Defendant's conflict of interest with attorney is rarely grounds for relief.

Defendant has no right to be jointly represented with his co-defendants if the government can show a potential conflict of interest.

Right to Support Services for Defense

Where the defendant made a preliminary showing that he is likely to be able to use the insanity defense, the state must provide a psychiatrist for the preparation of the defense.

Seizure of Funds

Right to counsel does not forbid the seizure of drug money and property obtained with drug money, even where defendant was going to use such money or property to pay an attorney.

Right to Counsel During Testimony

Defendant has no right to consult with attorney while testifying, and may be sequestered from her attorney during short breaks (not overnight).

Right to Confront Witnesses

The 6th Amendment grants defendant in criminal prosecution the right to confront adverse witnesses. This right is not absolute: face-to-face confrontation is not required when preventing such confrontation serves an important public purpose (i.e., protecting child witnesses from trauma). The judge may remove a disruptive defendant, and defendant may voluntarily leave the courtroom during trial.

Introduction of Co-Defendant's Confession

If two persons are tried together and one has given a confession that implicates the other, the right to confrontation prohibits the use of that statement, even where confession interlocks with defendant's own confession, which is admitted. However, such statement may be admitted if:
(1) all portions referring to the other defendant can be eliminated,
(2) confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth of what the statement asserts, or
(3) confession of non-testifying co-defendant is being used to rebut defendant's claim that his confession was obtained coercively.

Hearsay and the Right to Confront Witnesses

Hearsay, if admitted, could deny defendant the right to confront the declarant. Before 2004, the Supreme Court admitted hearsay statements made at prior judicial proceedings if the declarant was unable to testify and the statement was supported by an indicia of reliability. In 2004, this was changed. Now, prior testimonial statements of unavailable witnesses will be admitted only if the defendant had an opportunity to cross-examine the declarant at the time the statement was made. No comprehensive definition of "testimonial," but has been held to include, at a minimum, testimony from a preliminary hearing, grand jury proceeding, former trial, or police interrogation.

Burden of Proof and Sufficiency of Evidence

Due Process requires in all criminal cases that state prove guilt beyond a reasonable doubt.

The state may generally impose the burden of proof upon the defendant in regard to an affirmative defense.

Mandatory presumption or presumption that shifts the burden of proof to the defendant violates the 14th Amendment requirement that the state prove every element of a crime beyond a reasonable doubt.

Entering a Guilty Plea

The judge must determine that the plea is voluntary and intelligent. Must be done by addressing the defendant personally, in open court, on the record. Specifically, the judge must be sure the defendant knows and understands things like:
(1) the nature of the charge to which the plea is offered and the crucial elements of the crime charged,
(2) maximum possible penalty and the mandatory minimum, and
(3) that he has a right not to plead guilty and if he does plead guilty, he waives his right to trial.

It is sufficient for the record to reflect that the attorney has explained these things to the defendant.

Remedy: Withdrawal of plea and pleading anew.

Collateral Attacks on Guilty Pleas After Sentencing

A plea can be set aside for:
(1) involuntariness (failure to meet standards for taking the plea);
(2) lack of jurisdiction;
(3) ineffective assistance of counsel; or
(4) failure to keep the plea bargain.

Is the judge required to accept a plea that has been agreed upon by prosecution and defense?

No, he can reject it.

If the guilty plea is entered in response to Prosecutor's threat to charge the defendant with a more serious crime, is the plea involuntary?

No, not without other evidence of involuntariness. There is no prosecutorial vindictiveness here.

Collateral Effects of Guilty Pleas

A guilty plea conviction may be used as a conviction in other proceedings when relevant. However, a guilty plea neither admits the illegality of incriminating evidence nor waives the 4th Amendment claims in a subsequent civil damages action.

Procedural Rights in Sentencing

Defendant has right to counsel during sentencing. Usually, sentence may be based on hearsay and uncross-examined reports (no right to confront). However, where a magnified sentence is based on a statute that requires new findings of fact be made, facts must be found in a context that grants rights to confront/cross-examine.

Defendant in death penalty case must have more opportunity to confront than need be given a defendant in other sentencing proceedings.

Imprisonment of Indigents for Non-Payment

Where aggregate imprisonment exceeds the maximum fixed by statute and results directly from involuntary non-payment of a fine or court costs, there is an impermissible discrimination and violation of Equal Protection.

Substantive Rights in Regard to Death Penalty

Death only imposed when judge/jury is given reasonable discretion, full information concerning defendant, and guidance in making decision. Must allow to consider all mitigating evidence. If the death sentence is partly based on aggravating factor of defendant's previous conviction, the sentence must be reversed if the prior conviction is overturned.

Death sentence affected by vague or otherwise unconstitutional factor may still be upheld, but only if all aggravating/mitigating factors involved are reweighed and death is still found to be appropriate.

What can the death penalty be imposed for?

Murder. 8th Amendment, however, prohibits the imposition of the death penalty for rape of adult woman (disproportionate). Same for felony murder, unless felony murderer's participation was major and he acted with reckless indifference to the value of human life.

Other 8th Amendment Prohibitions on the Death Penalty

8th Amendment prohibits imposing the death sentence on the mentally retarded. Also prohibits the execution of those under 18 at the time the offense was committed.

Right to Appeal

No federal constitutional right to an appeal.

Right to Counsel on Appeal

If an avenue of post-conviction review is provided, conditions that make the review less accessible to the poor than to the right violate Equal Protection. Thus, indigents must be given counsel at state expense during first appeal granted to all as a matter of right and for appeals of guilty pleas and pleas of no lo contendere. In a jurisdiction with two-tier system where second tier is discretionary review, indigent defendants need not be provided with counsel during second, discretionary appeal.

Habeas Corpus Proceeding

Indigent has no right to counsel at a habeas corpus proceeding. Petitioner has burden of proof by a preponderance of the evidence to show unlawful detention. State may appeal grant of writ of habeas corpus. Defendant generally may bring a habeas petition only if in custody. Generally, this includes anyone who has not fully service the sentence about which he complains.

Prisoner's Rights

Due Process: Prison regulations infringe on due process rights only if regulations impose "atypical and significant hardship" in relation to ordinary incidents of prison life.

4th Amendment: Prisoners have no reasonable expectation of privacy in cells.

Right of Access to Courts: Must be given reasonable access to courts.

1st Amendment: May be burdened by regulations reasonable related to penological interests. Note that incoming mail can be broadly regulated, but not outgoing. Federal statute prohibits states from interfering with religious practices, absent a compelling interest.

Right to Adequate Medical Care: Prisoner's have this right under the 8th Amendment.

Misc: Person convicted of a felony may not vote, and this deprivation may constitutionally continue after term of sentence.

When does jeopardy attach?

Jeopardy attaches in a jury trial at the empaneling and swearing of a jury. In a bench trial, when the first witness is sworn. In juvenile proceedings, when the proceeding is commenced. Jeopardy doesn't attach in civil proceedings.

Exceptions for Permitting Retrial After Jeopardy Has Attached

(1) Hung Jury
(2) Manifest necessity to abort original trial or when termination at behest of defendant on any ground not constituting acquittal on the merits (mistrial)
(3) Defendant who has successfully appealed conviction unless grounds was insufficient evidence (on retrial, may not be tried for greater offense than previously convicted of)
(4) After defendant breaches plea bargain

What constitutes the "same offense" for purposes of double jeopardy?

Two crimes are the same offense unless each crime requires proof of an additional element that the other doesn't require, even if some of the same facts can be used to prove both.

Even if two crimes are the same, multiple punishments are permissible if the legislative intent was to have multiple punishments (e.g, sentenced for robbery AND for using a weapon during the crime).

Double jeopardy clause is not violated whtn the person indicted for a crime that conduct of which was used to enhance defendant's sentence for another crime.

Double jeopardy prevents repetitive criminal prosecutions. The state is free to bring civil action against defendant despite being criminally tried for the conduct and vice versa.

Attachment of jeopardy on a lesser included offense bars retrial for greater offense except that defendant may be retried for murder after jeopardy attaches for battery, if victim dies as a result. Exception: unlawful conduct subsequently used to prove greater offense (1) has not occurred at the time of prosecution for lesser offense or (2) hasn't been discovered despite due diligence.

Separate Sovereigns and Double Jeopardy

Constitutional prohibition on double jeopardy doesn't apply to trials by separate sovereigns. Person may be tried for same conduct by state and federal government, two states, but not a state and its municipalities.

Appeals by Prosecution

Even after jeopardy has attached, prosecution may appeal any dismissal on defendant's motion that doesn't constitute an acquittal on the merits. Double jeopardy does not bar appeals by prosecution if successful appeal wouldn't require a retrial. No bar to government appeal of a sentence pursuant to statute allowing such review. However, if jury fails to impose death, prosecution may not seek death on retrial after successful appeal.

Collateral Estoppel and Double Jeopardy

Under the doctrine of collateral estoppel, defendant may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination is inconsistent with one required for conviction.

Privilege Against Compelled Self-Incrimination

Only natural persons may assert this (not corporations). May only be asserted by a party when the answer would incriminate himself - and may refuse to answer whenever his response might furnish a link in the chain of evidence needed to prosecute him. Privilege must be claimed at civil proceedings to prevent privilege from being waived for a later criminal prosecution. Criminal defendant has a right not to take the witness stand at trial and to not be asked to do so. Any other situation, person must be sworn and asked questions to which he may refuse to answer.

The privilege only protects testimonial or communicative evidence. Must relate to a factual assertion or disclose information. Compulsory production of documents doesn't give rise to a 5th Amendment objection. Neither does searching for and seizing documents.

Violation doesn't occur until person's compelled statements are used against him in a criminal case.

Prohibition Against Burdens on Assertion of Privilege Against Compelled Self-Incrimination

Prosecution may NOT comment on defendant's silence after being arrested and given Miranda warnings. Also may not comment on defendant's failure to testify at trial. Defendant is entitled to jury instructions against not drawing adverse conclusions from defendant's failure to testify (not automatic - must make motion, but sometimes judge will offer them sua sponte, even over defendant's objection).

Exception: Prosecution may comment on defendant's failure to take the stand if the defendant's counsel asserts that defendant wasn't allowed to explain his side of the story.

When prosecution impermissibly comments on the defendant's silence, the harmless error test applies.

State may not chill the exercise of the privilege against compelled self-incrimination by imposing penalties for failure to testify.

Elimination of Privilege Against Compelled Self-Incrimination

Witness may be compelled to answer questions if granted adequate immunity from prosecution. "Use and Derivative Use" immunity is sufficient.

Person has no privilege against self-incrimination if no possibility of incrimination (i.e., statute of limitations has run).

Immunity

Witness may later be prosecuted if prosecutor shows that evidence to be used against the witness was derived from an independent source other than his immunized testimony.

Testimony obtained by promise of immunity is coerced, and therefore involuntary. May not be used for impeachment of defendant's testimony at trial But any statements, immunized or not, may be used in a trial for perjury.

Federal prosecution may not use evidence obtained as a result of state grant of immunity, and vice versa.

Immunity only extends to offenses to which question relates and doesn't protect against perjury committed during immunized testimony.

Waiver of Privilege Against Compelled Self-Incrimination

Criminal defendant, by taking the stand, waives privilege to extent necessary to subject him to any cross-examination. Witness waives privilege only if he discloses incriminating information.

Rights That Must Be Afforded in Juvenile Court Proceedings

(1) Written notice of charges
(2) Assistance of counsel
(3) Opportunity to confront and cross-examine witnesses
(4) Right not to testify
(5) Right to have "guilt" established by proof beyond a reasonable doubt

Rights NOT Afforded in Juvenile Court Proceedings

(1) Right to jury trial
(2) Pre-trial detention allowed when juvenile is a "serious risk" to society, as long as detention is for a strictly limited time before trial may be held.

If a juvenile court adjudicates a child a delinquent, can he be tried as an adult for the same behavior?

No - jeopardy has attached.

Exclusionary Rule

Prohibits introduction of evidence obtained in violation of defendant's 4th, 5th, and 6th Amendment rights. Inadmissible at trial and all "fruit" must be excluded as well. Exceptions: (1) evidence obtained from a source independent of the original illegality, (2) intervening act of free will by the defendant, and (3) inevitable discovery.

Note: It is difficult to have live testimony excluded on these grounds.